The King v Connor McPhee

[2023] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-384

[2023] NZHC 1186

THE KING

v

CONNOR McPHEE

On the Papers
Counsel:	S A H Bishop and K L Kensington for the Crown P H Surridge for Mr M
Judgment:	17 May 2023

JUDGMENT OF GWYN J

(Name Suppression)

Introduction

[1]    Connor McPhee was found not guilty of manslaughter1 by a jury in the Wellington High Court. Upon his acquittal, I continued the interim name suppression initially granted by Ellis J2 in the pre-trial stage. Mr McPhee has sought permanent name suppression on the ground of “extreme hardship”.3 Mr McPhee had earlier sought suppression on a second ground also — risk to his fair trial rights — but no longer relies on that ground. The Crown opposes the application.

1      Crimes Act 1961, ss 160(2)(a) and 171.

2      R v M [2021] NZHC 2201.

3      Criminal Procedure Act 2011, s 200(2)(a).

R v CONNOR McPHEE [2023] NZHC 1186 [17 May 2023]

Submissions

For the applicant

[2]    Mr Surridge, counsel for the  applicant,  submits  the  Court  should  grant  Mr McPhee permanent name suppression because the applicant’s mental health satisfies the extreme hardship ground under s 200(2)(a) of the Criminal Procedure Act 2011 (CPA).

[3]    In support of his application, Mr McPhee has filed in evidence a report from his psychiatrist. The psychiatrist’s report notes Mr McPhee’s concern for his security as well as the security of his family. At the time of the victim’s death, the victim’s family had posted about the death on social media. The prospect of renewed publicity if Mr McPhee’s name enters the public domain concerns him. The psychiatrist suggests that Mr McPhee’s mental health would benefit from permanent name suppression.

[4]    The report also notes Mr McPhee’s concern about his business interests if publicity of his name is allowed. Mr McPhee is self-employed and runs a business employing two or three staff. He worries that if it became widely known that he had faced a manslaughter charge, he would be less likely to be invited to tender for work, which would have a negative impact on his finances and his ability to supply his employees with work.

For the Crown

[5]    Counsel for the Crown submits that the applicant has not established that publication of Mr McPhee’s name will cause him extreme hardship. Further, the Crown submits that even if Mr McPhee’s application passed the threshold stage of the assessment under s 200 of the CPA, the Court should not exercise its discretion to suppress the applicant’s name because the presumption of open justice is not displaced by the competing factors in this case. There is a legitimate public interest in reporting on a successful self-defence claim.

[6]    The Crown submits that the medical evidence does not establish that the publication of Mr McPhee’s name will cause him extreme hardship. The psychiatrist’s report notes Mr McPhee has previously experienced difficulties with his mental health. As to his current situation, the report demonstrates an improvement in Mr McPhee’s mental health now, compared to when charges were first laid against him. The Crown notes that Mr McPhee has support mechanisms in place, including close support from his mother. Mr McPhee’s capability for self-harm and the possibility that self-harm could occur fall short of a real and appreciable risk that would make extreme hardship likely to result from the publication of his name.

[7]    Mr McPhee’s belief that the publication of his name would lead to an escalation in threats against him from the victim’s family is unfounded, given members of the victim’s family already know his name, having attended the trial. Publication would also properly include the fact of Mr McPhee’s acquittal. Therefore, Mr McPhee’s application does not meet the threshold of extreme hardship under s 200(2)(a).

Relevant law

[8]Section 200 of the CPA provides:

200     Court may suppress identity of defendant

(1)A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.

(2)The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—

(a)cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person; or

…

[9]    The Court has a discretion to order suppression only once it is satisfied that one or more of the consequences identified in subs (2) would be likely to occur. Section 200 provides a two-stage process: stage one is a threshold determination and

stage two is a discretionary assessment. The Court of Appeal outlined the approach to the two-stage test:4

At the first stage, the judge must consider whether he or she is satisfied that any of the threshold grounds listed in 200(2) has been established. That is to say, whether publication would be likely to lead to one of the outcomes listed in subs (2). The listed outcomes are prerequisites to a court having jurisdiction to suppress the name of a defendant. It is “only if” one of the threshold grounds has been established that the judge is able to go on to the second stage.

At the second stage, the judge weighs the competing interests of the applicant and the public, taking into account such matters as whether the applicant has been convicted, the seriousness of the offending, the views of the victims and the public interest in knowing the character of the offender.

[10]   The Court of Appeal in D (CA443/2015) v Police described the standard that applies when assessing whether the threshold question (in this case, extreme hardship under subs(2)(a)) is met. It noted that:5

[T]he court must decide whether publication will cause “extreme” … hardship

… The adjectives indicate these are competitive standards. They require that the court compare the consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrassment and adverse personal and financial consequences usually attend criminal proceedings, and something out of the ordinary is needed if the applicant is to get across the threshold. This is an important principle. …

[11]   At the second stage, in the exercise of the discretion, the Court must balance the principle of open justice and other relevant considerations, with the ultimate question being “whether open justice should yield.”6

Analysis

Threshold question: extreme hardship

[12]   On an application for suppression based on mental health grounds, the threshold question requires a “real and appreciable possibility” of the applicant self- harming.7 The Court of Appeal has said, although in relation to cases under

4      Robertson v Police [2015] NZCA 7 at [40]–[41].

5      D (CA443/2015) v Police [2015] NZCA 541 at [11] (footnotes omitted).

6 At [12].

7      At [30(a)].

s 200(2)(e), that courts cannot accept that any risk of suicide is unacceptable such that name suppression should be granted when there is any presence of suicide risk.8

[13]   Here, the psychiatrist’s report does not suggest that Mr McPhee is at immediate risk of self-harm. The report suggests Mr McPhee is coping with the trial-related anxiety better now than when he first sought professional help, at the time the charges were laid. I note that a large part of Mr McPhee’s anxiety appeared to result from his relationship with the complainant in a separate District Court proceeding that did not ultimately proceed. As the Crown notes, that proceeding has little, if any, relevance to the present application for permanent name suppression in respect of the manslaughter proceeding. However, the psychiatrist noted that Mr McPhee has a history of suicidal ideation and depressive episodes, and that he remains capable of dangerous and self-harming action.

[14]   When Ellis J granted Mr McPhee interim name suppression, the two principal factors in favour of suppression were the combined effect of Mr McPhee’s mental health and the importance of the presumption of innocence in the pre-trial stage.9 The pre-trial presumption of innocence is no longer pertinent given the manslaughter trial has concluded, with the jury finding Mr McPhee not guilty. Although there remains a risk of Mr McPhee self-harming or exacerbating mental health difficulties as a result of the publication of his name in the context of the manslaughter proceeding, I consider that this risk is lower now than it was in the pre-trial stage. I accept the Crown’s submission that Mr McPhee appears to have responded well to his sessions with the psychiatrist and has implemented support mechanisms.

[15]   I acknowledge the applicant is concerned that the publication of his name would increase his risk of experiencing threatening behaviour from the victim’s family. However, the victim’s family already know Mr McPhee’s name because they attended the manslaughter trial and the Court is not aware of any threats made since the close of the trial. I am also not satisfied that Mr McPhee would be at risk of receiving threats or experiencing negative conduct from members of the public in response to reporting on the circumstances of his trial and acquittal.

8      At [30(a)].

9      R v M, above n 2.

[16]   I acknowledge the applicant’s submission that the association of his name with the manslaughter charge may risk reducing the reputation of his business in the eyes of potential clients. However, in my view, the accurate reporting of Mr McPhee’s acquittal would adequately mitigate the risk of deterring potential clients from engaging Mr McPhee’s firm. It is now 13 months since Mr McPhee’s acquittal. That passage of time also serves to lessen the risk of hardship consequent on publication.

[17]   I am not satisfied that lifting Mr McPhee’s interim name suppression order is likely to cause him extreme hardship. Although publication of a person’s name in relation to a criminal charge — even when it results in an acquittal — is likely to cause some embarrassment or discomfort, these consequences are no more than those which usually arise from the fact of being a party to criminal proceedings. The material before the Court does not demonstrate the additional consequences that would constitute Mr McPhee experiencing an extreme level of hardship.

Discretionary exercise

[18]   In case I have incorrectly determined whether the threshold is met for extreme hardship, I now consider whether the Court should exercise its discretion in favour of name suppression.

[19]   The Court’s discretion to prohibit publication should operate as an exception to the general rule of open justice and should be used sparingly in cases involving serious offences.10 The balance must “clearly favour” suppression.11

[20]   Manslaughter is a serious offence. Because Mr McPhee has been found not guilty of manslaughter, any reporting will describe the fact of his acquittal along with the laying of the charge. The hardship Mr McPhee will face will not be of such magnitude to favour infringing on the public’s right to know the identity of those who appear before the courts. There is legitimate public interest in this case: a proper trial process was followed where self-defence was advanced and accepted by the jury.12

10     Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA200.01].

11     D (CA443/2015), above n 5, at [12].

12     See for example R v Liddell [1995] 1 NZLR 538 (CA) at 546.

The facts of the present case do not justify departure from the fundamental principle of open justice.13

Conclusion

[21]   Mr McPhee has not satisfied the Court that publication of his name is likely to cause him extreme hardship. The facts of the case do not displace the presumption of open justice. Accordingly, I decline his application for permanent name suppression.

Gwyn J

Solicitors:

Crown Solicitor, Wellington

Mana Law, Porirua

13     Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].